Monday, October 26, 2009

How has something as simple as a golf course equipment wash pad gotten so complicated?

The days of placing a concrete pad at the barn to wash equipment with irrigation water is over. The water from equipment washing in most cases is considered a pollutant. Especially washing spray equipment without containing the wash water is considered criminal in most states.

We all agree water pollution is bad, some may remember the 1969 Cuyahoga River fire and how it helped spur an avalanche of water pollution control activities resulting in the Clean Water Act, Great Lakes Water Quality Agreement, and the creation of the federal Environmental Protection Agency. As a result, large point sources of pollution on the Cuyahoga and throughout the country have received significant attention since that ridiculous fire in 1969. These events are referred to in Randy Newman's 1972 song "Burn On", R.E.M.'s 1986 song "Cuyahoga" and The Simpsons episode "Lemon of Troy”. Great Lakes Brewing Company of Cleveland, Ohio named their Burning River Pale Ale after the event. Bad event; when a river catches on fire. It goes to show that a catastrophe can have a far reaching impact.

So do you suppose that wash water from golf courses might be the next song or Simpson’s episode? What if a large fish kill took place in the river a half mile away from the golf course. By coincidences your spray tech just applied a mixture of chlorpyrifos and Mancozeb. That wash water made its way into the river and now the local brew pub has a new microbrew, “Rolling Green Fish Kill Lager”. In the meantime, the local, state and USEPA are taking soil and water samples looking for a finger to point.

Where do your golf course chemicals go, how long do they persist in the soil and water, what liabilities do you and your club have when it concerns water, fish and the environment?

What’s in the water from the golf course wash pad? A. Martin Petrovic, PH.D, Cornell University, did research into this very same issue published in the Green Section Record, September – October, 2005, Evolving Equipment Technology and what’s in That Water. Although site specific to New York state and Suffolk County in particular the data from chemicals present in wash water is telling. Most fertilizers and chemicals present in the wash water were below threshold amounts. However, the build-up of these chemicals overtime could have a deleterious effect. It’s interesting to note that detectable amounts of pesticides (chlorpyrifos being one which is highly toxic to fish) where measured in holding tanks even though these chemicals have not been used at the subject golf courses for years. Also of note, Dr. Petrovic recommends that pesticide equipment not be washed in the same manner that other turf equipment is washed unless a recycling or water treatment system is used.

Now where does that leave the golf course superintendent? To unravel the questions behind the equipment wash pad conundrum we need to understand nomenclature or more specifically point source pollution and nonpoint source pollution and how these sources are treated by federal and state statues.

Point source pollution (PSP) is a single identifiable localized source of pollution. A point source has negligible extent, distinguishing it from other pollution sources. The sources are called point sources because they can be approximated as a geographical point to simplify analysis. On a golf course property I believe it’s safe to admit most pollutants are PSP.

Nonpoint source pollution (NSP) is pollution affecting the environment from diffuse sources, and large geographic areas such as polluted runoff from agricultural areas draining into a river, or wind-borne debris blowing over many miles. NSP may derive from many different sources with no specific solution to rectify the problem, making it difficult to regulate.

The term “Water of the United States” is defined very broadly in the Clean Water Act and after 25 years of litigation it means navigable waters, tributaries to navigable waters, interstate waters, the oceans out to 200 miles, and intrastate waters which are used: by interstate travelers for recreation or other purposes, as a source of fish or shellfish sold in interstate commerce or for industrial purposes by industries engaged in interstate commerce.

COTTON COUNCIL VS USEPA
The Sixth Circuit of Appeals ruled that residuals of chemical pesticides and biological pesticides are pollutants regulated under the Clean Water Act and has recently stayed the effective date of its decision until April 9, 2011. As a result of the ruling, anyone who applies a pesticide in, over, or near waters of the United States will need to be covered by a permit issued under the Clean Water Act after this effective date. Irrigation return flows and agricultural runoff will not require Clean Water Act permits as they are specifically exempted from the Clean Water Act. EPA plans, before the ruling takes effect, to issue general permits under the Clean Water Act for covered pesticide applications, to assist authorized states to develop their permits, and to provide outreach and education to the regulated community. EPA will work closely with state water permitting programs, the regulated community and environmental organizations in developing general permits that are protective of the environment and public health.

FINAL RULING LANGUAGE BY THE SIXTH CIRCUIT COURT OF APPEALS
For all of these reasons, we conclude that the statutory text of the Clean Water Act forecloses the EPA’s Final Rule. The EPA properly argues that excess chemical pesticides and chemical pesticide residues, rather than all chemical pesticides, are pollutants. However, the Final Rule does not account for the differences between chemical and biological pesticides under the language of the Clean Water Act. Further, because the Act provides that residual and excess chemical pesticides are added to the water by a “point source” there is no room for the EPA’s argument that residual and excess pesticides do not require an NPDES permit. The “point source” from which the residue originates is easily discernable and necessarily must “be controlled at the source.” See 73 Fed. Reg. at 33,702.

Given all of the above in combination with the EPA’s interpretation that point sources need only convey pollutants into navigable waters to be subject to the Act,” dischargers of pesticide pollutants are subject to the NDPES permitting program in the Clean Water Act. As such, the EPA’s Final Rule cannot stand. Because the Clean Water Act’s text bars the Final Rule we make no determination regarding the validity of the issuance of the Final Rule under the APA, nor do we analyze the relationship between the Clean Water Act and the FIFRA.

THE LAWS AS INTERPRETED BY THE USEPA
Virtually all of the states have some enforceable statutory authority to deal generally with the subject of water pollution and activities on the land that may lead to such pollution. These authorities come in several forms. Many are parts of states' broad water pollution control laws. Provisions in public health and penal codes, typically enforced as petty criminal offenses, may prohibit specific kinds of discharges and substances that detrimentally affect public waters. Statutory nuisance and public health laws provide additional authorities where certain adverse effects can be proven. So does the common law of nuisance. And state fish and game protection laws frequently contain general provisions prohibiting pollution harmful to fish; or imposing liability for fish kills due to pollution events, not limited to point source pollution.

The key issues in each state statute are determining exactly what needs to be proven to demonstrate a "violation" of the law resulting in imposition of a sanction. For example, while various state water pollution control act provisions superficially resemble the federal Clean Water Act's prohibition of the discharge of a pollutant without a permit, unlike the federal Clean Water Act many of these can be applied to nonpoint source pollution because they lack the limitation in which defines "discharge of a pollutant" as "from any point source."

MATERIALS DISCHARGED

The first issue in assessing the potential applicability of any discharge prohibition to any nonpoint discharge is to determine what materials are included in the prohibition. A law which prohibits the discharge of "wastes" without a permit may, for example, have some utility in regulating discharges of manure from stock raising operations or motor oil, grease and petroleum byproducts from golf course wash pads, but be useless in addressing sediment discharges and be uncertain in addressing golf course runoff containing pesticides. On the other hand, a similar state law prohibiting unpermitted discharges of "pollutants" may be limited by the need to show that the substance discharged either is on a list of pollutants or actually results in pollution of the receiving waters.

Complicating these definitional inquiries is the fact that states frequently do not define the same words in the same ways. But at the same time it raises problems of proof similar to those in state statutes prohibiting discharges of "pollutants" - which an impact on the receiving waters may need to be shown in order for enforcement to occur. The broadest provisions found among the states prohibit the unpermitted discharges of "any substance" or any "organic or inorganic matter."

Another kind of common state statute, frequently found in public health laws, criminal laws, fish and game laws, or state environmental laws, actually lists materials that cannot be lawfully discharged - either at all, or without a permit - into the waters of the state or onto land adjacent to such waters. These lists typically include such specifics as offal, ashes, rubbish, paper, wood, sawdust, sludge, and other specific materials, only some of which are typical of nonpoint source pollution. Obviously, these provisions have only limited utility in the nonpoint source enforcement context. However, some state laws end these lists with a catch-all provision -- such as "anything else of an unsightly or unsanitary nature" or "a substance in any form resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations" or "any other article which might pollute the water."

PROHIBITED CONDUCT
The second major issue in interpreting the general discharge prohibitions is to determine what conduct is covered by the law. Such provisions usually come in two forms: (1) prohibition of mere discharge (or discharge without permit) without requiring the state to demonstrate any effect on the receiving waters, and (2) prohibitions of discharges that have, or can be projected to have, adverse effects on receiving waters.
Connecticut law illustrates both types. It prohibits any person from discharging or maintaining any discharge of "any water, substance or material into the waters of the state without a permit whether or not such substance causes pollution." At the same time prohibits any person from causing "pollution" of any of the waters of the state.

The typical type (1) prohibition states that the discharge of a material, substance, or waste into the waters of the state or onto the land where it may enter the waters of the state without a permit is unlawful. These provisions are typically the cornerstone of state NPDES (National Pollution Discharge Elimination System) programs for point source discharges, but they may also have some application to nonpoint discharges where state definitional limitations do not constrain such use. Approximately half the states have such provisions in their water pollution control laws without statutory provisions limiting them only to point source discharges.

The difficulties in applying type (1) prohibitions to nonpoint sources largely arise in two ways. First, a significant number of the states with such provisions have explicit statutory or regulatory exceptions for agriculture and/or forestry. While these exceptions remove significant nonpoint sources from the scope of these provisions, the exceptions themselves demonstrate the reach of the provisions over nonpoint source activities that are not specifically accepted. The second difficulty is more complex. Where there is a prohibition on discharge without a permit, but no permit scheme has ever been established, is the prohibition enforceable? A number of states have resolved this issue - either by establishing explicit permit authorities, or alternative authorities, or by case law - but others have not. In general, use of type (1) prohibitions where no permit program exists for nonpoint source discharges is possible, and many states assert the right to use such prohibitions in after-the-fact enforcement actions against polluters. But after-the-fact enforcement in a limited number of cases may not provide the same kinds of environmental benefits as a clear regulatory program that operates in advance of pollution events.

The vast majority of states have a type (2) prohibition that is potentially applicable to nonpoint source pollution. The typical type (2) prohibition does not address the issuance of a permit or the lack thereof. It simply prohibits discharges causing an identifiable harmful effect on the receiving waters. Such provisions typically make it "unlawful for any person to cause pollution of any of the waters of the state" Some of these provisions may spell out what is meant by "pollution," or may require that the state prove that the discharge caused a violation of a water quality standard in order to enforce the provision. Some state laws explicitly prohibit not only discharges that "cause" water quality standards to be violated, but also discharges that "contribute" to such conditions.

LOCATION OF THE DISCHARGE
The last issue that arises with general prohibition statutes is whether the material actually must enter the water in order for a violation to exist. While type (1) provisions often have such a requirement, a significant number of states, although not a majority, contain provisions that prohibit the placement of materials where they are "likely to cause pollution" or "likely to enter the waters." Some states approach this problem a different way. For example, Connecticut authorizes issuance of an order where any person has created or is maintaining a condition "which reasonably can be expected to create a source of pollution to the waters of the state." We can surmise that wash water from golf course equipment is classified in this explanation.

REVIEW OF STATE GENERAL DISCHARGE PROHIBITIONS IN WATER POLLUTION LAWS

This section summarizes the general prohibition authorities in the respective states and notes explicit limitations. This summary is intended to illustrate the potential scope of these provisions. Obviously, issues of statutory construction, regulatory interpretations, typical practice, and state institutions will influence the actual application of the provisions. In effect, this section identifies the outer bounds of such authorities as they appear on the books.

It is important to recognize in this brief summary that states have other authorities available to them. Indeed, where states are employing explicit strategies under other authorities aimed directly at nonpoint sources, they may make little or no use of the authorities summarized in this writing. The following summary is organized by state alphabetically.

Alabama requires a permit for discharges of "pollution” but although the requirement is not limited to point sources, the regulations provide that a permit is not required for discharges "from non-point source agricultural and silvicultural activities."

Alaska law provides that "a person may not pollute or add to the pollution of the...water of the state."

Arizona law requires the Department of Environmental Quality to adopt a permit requirement for point sources, and for certain facilities likely to pollute aquifers, and a "program to control nonpoint source discharges of any pollutant or combination of pollutants into navigable waters." Its general prohibition law makes it a criminal offense to (with criminal intent) discharge substances to waters without a required permit or other "appropriate authority," or to violate a water quality standard.

Arkansas makes it unlawful for any person to cause pollution or place waste in a location where it is likely to cause pollution.

California law requires a "report of waste discharge" from any person proposing to discharge "waste." The regional water quality control board must then issue waste discharge requirements (WDRs) - essentially a permit. However, these requirements may be conditionally waived by the regional board. California uses these requirement by first seeking to abate nonpoint source pollution through non - regulatory means, but reserves the power to either grant a conditional waiver (to secure operational changes in a discharger) or to require the report of waste discharge and issue a WDR.

Colorado's water pollution control law authorizes the water quality control commission to adopt regulations relating to any "activity" that "does or could reasonably be expected to cause pollution of any state waters in violation of control regulations or...any applicable water quality standard." With this authority, the state clearly may choose to regulate nonpoint sources of pollution; however, "control regulations related to agricultural practices shall be promulgated only if incentive, grant, and cooperative programs are determined by the commission to be inadequate and such regulations are necessary to meet state law or the federal act."

Connecticut prohibits both the discharge of any substance without a permit, and causing water pollution. Both provisions are potentially applicable to nonpoint sources.

Delaware requires a permit for any activity "which may cause or contribute to a discharge of a pollutant into any surface or ground water." The adopted implementing regulations appear limited to point source discharges to water and land, but the statute is not so limited and Delaware maintains that this authority also applies to nonpoint sources; indeed, Delaware's nonpoint programs rely in part upon this authority.

District of Columbia law expressly authorizes the mayor to regulate and require permits for nonpoint source pollution.

Florida law provides that causing pollution except as provided by law is prohibited and requires permits for discharges of waste that contribute to violation of water quality standards but further provides that agricultural activities (including all "normal and customary" farming and forestry operations), and agricultural water management systems, are authorized and do not require permits.

Georgia expressly requires anyone seeking to "erect or modify facilities or commence or alter an operation of any type which will result in the discharge of pollutants from a nonpoint source into the water of the state, which will render or is likely to render such waters harmful to the public health, safety, or welfare, or harmful or substantially less useful for domestic, municipal, industrial, agricultural, recreational or other lawful uses, or for animals, birds or aquatic life" to obtain a permit.

Hawaii prohibits the discharge of any pollutant to waters of the state except as authorized by law or permit. Hawaii, moreover, has explicit authority to regulate nonpoint source pollution under a provision that allows the issuance of enforceable nonpoint source rules which may include "water quality standards for specific areas, types of nonpoint source discharge, or management measures."

Idaho has very limited jurisdiction over nonpoint sources. It defines "discharge" in its water pollution control act as not including "surface water runoff from nonpoint sources." Another provision states that nonpoint sources are not required to meet water quality standards other than those necessary to support designated uses, unless a TMDL is required to be developed. In the context of TMDLs for high-priority impaired waters, the law provides that "nothing in this section shall be interpreted as requiring best management practices for agricultural operations which are not adopted on a voluntary basis." Indeed, the only direct authority is a prohibition on new or expanded nonpoint activities which "can reasonably be expected to lower the water quality of outstanding resource water," and these sources are entirely exempt from permitting or other regulation if they implement BMPs.

Illinois prohibits any person from causing, threatening, or allowing the discharge of any "contaminants" that would cause or tend to cause water pollution, or that would violate regulations or standards adopted by the Pollution Control Board. While this provision is not expressly limited to point sources, a second provision, which prohibits the unpermitted discharge of contaminants (without requiring evidence of water pollution) is expressly limited to point source discharges.

Indiana law provides that a person may not "cause, permit or suffer to be...drained, allowed to seep, or otherwise disposed into any waters...any organic or inorganic matter that causes or contributes to a polluted condition of any waters" in violation of adopted water quality standards.

Iowa prohibits "disposal" of a pollutant (defined as "waste") by discharge into the waters of the state except pursuant to a permit.

Kansas prohibits the discharge or placement or flowage of "sewage" (defined as any substance that contains human or animal waste products or excrement or any wastes from domestic, manufacturing, or other forms of industry) into the waters of the state except pursuant to a permit. The law also allows the attorney general to take action to secure abatement of "abatable pollution of the surface waters detrimental to the animal or aquatic life in the state."

Kentucky prohibits the discharge of any pollutant or substance that shall cause or contribute to water pollution "in contravention of any rule, regulation, permit, or order or the law further provides that if a violation is traceable to an agricultural operation, it shall be handled under the state's enforceable agricultural water quality act rather than under the stricter water pollution control act.

Louisiana prohibits any "activity" which results in the discharge of any substance to the waters of the state without the "appropriate permit, variance, or license." It also prohibits the discharge of any substance that will tend to cause water pollution in violation of any provision. However, the law also provides that these and other provisions of the water pollution control law "shall not apply to any unintentional nonpoint-source discharge resulting from or in connection with the production of raw agricultural, horticultural, or aquaculture products."

Maine prohibits the discharge of any pollutant without a permit, but explicitly provides that this provision is not violated by any discharge that is in compliance with an approved agricultural erosion and sediment control plan. Maine also prohibits any violations of water quality notwithstanding any permits or exemptions, but requires establishment of a mixing zone before enforcement of this provision against any source may occur.

Maryland law prohibits the discharge of a pollutant without a permit or other authorization and allows the imposition of permit requirements for activities that could cause or increase the discharge of pollutants.

Massachusetts prohibits discharge of a pollutant without a permit, 21 Mass. Gen. L. 42, but agricultural and silvicultural nonpoint source discharges are exempted by regulation.

Michigan prohibits the direct or indirect discharge of any substance that may be injurious to health, safety or welfare, uses of waters, riparian lands, and fish and wildlife. Although this section is codified in a chapter of the code entitled "point source pollution control", Michigan law provides that chapter headings are not part of the act and are not to be used to construe the scope of the act.

Minnesota has a general requirement of notice to the state of water pollution events and requires reasonable attempts by the discharger to minimize or abate pollution caused thereby. Furthermore, by regulation, Minnesota has provided that "no sewage, industrial waste or other wastes shall be discharged from either a point or nonpoint source into the waters of the state in such quantity or in such a manner alone or in combination with other substances as to cause pollution."

Mississippi prohibits pollution of the waters of the state or placement of wastes where they are likely to cause pollution, defining "pollution" as contamination not "in compliance with a valid permit," but the regulations provide that no permit shall be required for agriculture and silvicultural nonpoint source pollution.

Mississippi has another provision, not linked to permitting definitions, prohibiting the discharge of any "wastes" which reduce water quality below adopted water quality standards.

Missouri law prohibits causing pollution or placing any water contaminant where it is reasonably certain to cause pollution; it also prohibits the discharge of water contaminants which reduce the water quality below adopted water quality standards if not otherwise subject to effluent regulations.

Montana law makes it unlawful to cause water pollution or place any wastes "where they will cause pollution of any state waters." However, the law exempts materials placed in connection with activities permitted by any other state or federal agency, 75-5-605(a), and expressly exempts from state non - degradation requirements those nonpoint sources existing on April 29, 1993, all new nonpoint sources that follow "reasonable land, soil, and water conservation practices," land application of manure, and use of agricultural chemicals if done in accordance with an agricultural ground water management plan.

Nebraska law makes it unlawful to cause water pollution or to place any wastes in a location where they are likely to cause water pollution, or to discharge wastes that reduce the water quality in the receiving waters below adopted water quality standards.

Nevada's general pollution prohibition authority is expressly limited to point sources However Nevada statutes also allows the state to prescribe controls for nonpoint sources ("diffuse sources") to prevent degradation of high quality waters, but not for "normal...farming practices". And allows regulation of nonpoint sources existing on Jan 1, 1979 that are "significantly causing or adding to water pollution in violation of a water quality standard" and for new nonpoint sources where they impair high quality waters.

New Hampshire prohibits discharge of a waste without a permit, but also has a provision making it unlawful for any person to dispose of wastes in such manner that water quality standards will be violated.

New Jersey law prohibits discharge of pollutants without a permit or as otherwise authorized, N.J. Stat. Ann. 58:10-6; and also prohibits the placement of "deleterious" substances into the waters or where they can find their way into such waters, but exempts from the latter provision chemicals used in agriculture, forestry, horticulture, and livestock if done in an approved manner.

New Mexico's water pollution law does not itself contain a prohibition applicable to nonpoint source water pollution, but rather authorizes the water quality control commission to adopt regulations "to prevent or abate water pollution in the state" and to require permits. Thus, the availability of any enforceable authority depends entirely on the promulgation of specific regulatory requirements.

New York prohibits the direct or indirect discharge of any substance that "shall cause or contribute to" a condition in violation of water quality standards.

North Carolina prohibits the discharge of wastes and certain other discharges without a permit, of perhaps greater immediate utility in the nonpoint context is its authority to issue "special orders" to "any person...responsible for causing or contributing to any pollution of the waters of the state within the area for which standards have been established."

North Dakota laws make it unlawful to cause water pollution or place any wastes where they are likely to cause water pollution.

Ohio's water pollution law prohibits causing pollution or placing any wastes where they cause pollution except in accordance with a permit, but exempts agricultural and silvicultural runoff and earthmoving activities subject to regulation under Ohio's nonpoint source control programs administered by soil and water conservation districts and local governments. The Ohio law also exempts runoff of excrement from domestic and farm animals, only some of which is subject to regulation under the referenced programs.

Oklahoma law makes it unlawful for any person to cause water pollution or to place wastes in any location where they are likely to cause pollution. This provision is expressly interpreted to apply to nonpoint sources.

Oregon law prohibits any person from polluting waters of the state or placing any waste where it is "likely to escape or be carried into the waters of the state, and from discharging wastes into water if such discharge reduces water quality below the adopted standards.

Pennsylvania prohibits the discharge of any substance resulting in pollution, Pennsylvania also has a provision prohibiting discharge without a permit, which it has used for nonpoint sources, but the provision applies only to industrial wastes.

Puerto Rico authorizes its state agency to forbid any discharges that do not have the appropriate permit. Also expressly prohibits direct or indirect discharge of any substance capable of polluting or leading to pollution in violation of water quality standards.

Rhode Island prohibits the placement of any pollutant in a location where it is likely to enter the waters, and the placement of any solid waste or debris in the waters; but it only prohibits the "discharge [of] any pollutant" from a "point source."

South Carolina prohibits the direct or indirect discharge, seepage, or drainage of any substance into the waters of the state except in compliance with a permit.

South Dakota has a similar provision. In addition, any discharge of wastes (defined as any polluting "substances") that results in degradation of water quality is also prohibited.

Tennessee has a general prohibition against any discharge causing "pollution" except as properly authorized, but the law does not apply to any nonpoint source discharges from "any agricultural or forestry activity."

Texas prohibits the discharge of waste, including agricultural waste, into or adjacent to any waters, and prohibits any other act which causes pollution of any waters, except as authorized. The law exempts agricultural and silvicultural discharges in compliance with a certified water quality management plan.

Utah prohibits causing pollution that constitutes a menace to public health and welfare, is harmful to fish or wildlife, or impairs beneficial uses of water, and prohibits placement of waste where there is "probable cause" to believe it will cause pollution.

Vermont prohibits discharge of any substance without a permit, but expressly exempts the "proper application of fertilizer to fields and crops."

Virginia law prohibits the discharge of wastes or any "noxious or deleterious substances" or the pollution of waters without a permit as well as the placement of any substance which may contaminate or impair the lawful use or enjoyment of waters of the state except as permitted by law.

Washington prohibits the discharge of "any organic or inorganic matter that shall cause or tend to cause" water pollution and permits are required for disposal of material into the waters of the state. However, the law does not authorize the adoption of a permit system for nonpoint sources or imposition of penalties for pollution arising from forest practices conducted in compliance with the state's forest practices law.

West Virginia's general water pollution control law appears not to provide for the regulation or prohibition of nonpoint source discharges.

Wisconsin laws authorize the state agency to issue orders for the abatement of nonpoint source pollution if the source is "significant" and impairs water quality. The provision has limitations on its use to control pollution caused by animal waste and pollution from an agricultural source in a priority watershed, where other planning and implementation tools are to be used first.

Wyoming makes it unlawful to "cause, threaten or allow the discharge of any pollution or waste into the waters of the state" except as authorized by permit. The prohibition has been held to apply to polluting activities for which no permit was available.

The general prohibition authorities summarized above are typically used by states not to carry out a detailed regulatory approach to point and nonpoint source water pollution, but rather as "back-up" authority to other programs intended to control such pollution, or to deal with egregious cases in the absence of other programs.

DISCHARGE PROHIBITIONS OF NARROWER SCOPE
In addition to the general prohibitions found in most states' water pollution control laws, virtually every state has other - usually older - provisions prohibiting certain kinds of discharges deemed detrimental to the public health or welfare, fisheries, drinking water, or other interests identified by the legislature.

DISCHARGE OF LISTED SUBSTANCES

Various statutes specifically list detrimental substances whose discharge into the waters of the state is prohibited. These provisions are found most often in public health laws, criminal laws, and fish and game laws. West Virginia has a typical provision, making it an offense "to place, deposit, dump, or throw, or cause to be placed, deposited, dumped or thrown, any litter, garbage, refuse, trash, can, bottle, paper, ashes, carcass of any dead animal or part thereof, offal, or any other offensive or unsightly matter into any river, stream, creek, branch, brook, lake or pond, or upon the surface of any land within one hundred yards thereof, or in such location that high water or normal drainage conditions will cause any such materials to be washed into any such waters." This study identified similar provisions in Connecticut, Maine, Massachusetts, New Hampshire, New York, Pennsylvania, Florida, Illinois, Indiana, Michigan, Minnesota, Ohio, Arkansas, Oklahoma, Texas, Iowa, and California, although undoubtedly other states have such provisions.

DISCHARGE OF SUBSTANCES HARMFUL TO FISH

Approximately half the states' fish and game codes contain provisions that prohibit the discharge of various substances that are, or that may be, harmful to fish. These provisions do not require proof of injury to fish, but focus on the nature of the substances discharged. This is usually clear from the nature of the prohibition, but it is spelled out explicitly in some laws - for example, "it is not necessary to prove that the violation has actually caused the death of, or damage to, any particular fish."

For example, Kentucky's law provides: "No person shall place or cause to be placed in any public waters any substance that might injure, interfere with, or cause the waters to be unfit for the support of wildlife including fish.” Arkansas law provides that, "it shall be unlawful for any person to deposit, throw, drop, or discharge in any manner in any of the waters of this state any substance, liquid, or gas or anything else that will or does intoxicate or stupefy or in any manner injure any fish therein, whether done for the purpose of catching or taking fish or not." Rhode Island law provides: "No person shall place, deposit, or explode any substance injurious to the health or life of a fish in any stream or fresh water pond" Far more narrowly, Vermont prohibits the deposit of "lime, creosote, coculus inducus or other drug or poison destructive to fish." Given the principles of statutory construction discussed earlier, it may be harder to apply this provision to many forms of nonpoint source pollution.

State fish and game laws can also provide regulatory authority over pollution discharges in some cases. For example, Massachusetts has an unusual provision that allows the state fisheries agency to determine that a "prohibition or regulation of the discharge of waste or material from any source" is needed for particular inland waters because of the value of the fishery, leading to action by the pollution control agency.

FISH KILL CAUSED BY POLLUTION
Many states also have provisions that prohibit fish kills or that allow enforcement responses to fish kills. Although some of these are simply broadly written prohibitions on killing fish without a valid fishing license, many others clearly proscribe nonpoint source and other discharges that result in harm to aquatic life.

POLLUTION OF DRINKING WATER OR PUBLIC SUPPLY

About a fourth of the states have older provisions specifically aimed at preventing or criminalizing the pollution of a drinking water supply. In Oklahoma, "No person...shall pollute or permit the pollution of the water supply of a municipality, or any stream, pond, spring, lake, or other water reservoir or groundwater aquifer, which is used or which is being held for use as a water supply by a municipality." Minnesota statutes require, "No sewage or other matter that will impair the healthfulness of water shall be deposited where it will fall or drain into any pond or stream used as a source of water supply for domestic use."

NUISANCE AND PUBLIC HEALTH PROVISIONS
Virtually all states have statutory provisions that provide for the abatement of nuisances, and many have additional public health provisions that may have some application to particular instances of nonpoint source pollution. The common law of nuisance also applies in every state. Nuisances are of basically two types: public nuisance and private nuisance. Public nuisance is the creation of a condition that causes injury to the public welfare, while private nuisance impairs the use and enjoyment of property. Nuisance is not a fault-based doctrine, but requires only proof of the adverse condition. Thus, even a condition that does not violate any law or regulation may still be abatable as a nuisance. Remedies for public nuisances are typically injunctions for abatement, or authority for a public entity to conduct summary abatement of the nuisance and recover its abatement costs, and/or the imposition of fines - reflecting the historic origins of public nuisance as a quasi-criminal action.

Public nuisance actions may be brought by the state or, often, by any affected entity or person, while private nuisance actions are brought by adversely affected land owners.

Nonpoint source water pollution that impairs the usefulness of waters, adversely affects human health, or impairs the rights of others may be abatable under state nuisance laws. Two types of nuisances are generally addressed by state statutes - first, and more important for most nonpoint sources, are state provisions declaring water pollution to be a nuisance. Such legislative declarations limit the need to prove particular deleterious effects in order to secure relief. Second, are state provisions that provide for the abatement of conditions dangerous to public health or otherwise noxious or offensive to the senses.

Alabama law combines both approaches in one provision: "Any and all pollution is hereby declared to be a public nuisance and, if it creates, or is about to create, a health hazard, shall be subject to immediate control of the commission by order or injunction." This provision both declares water pollution a nuisance making it subject to injunctive relief by the state or any person, and declares that particular kinds of water pollution (health hazards) are subject to certain kinds of administrative relief and summary abatement action. Pennsylvania law provides a typical, but especially complete, version of the "water pollution as nuisance" provision: "The discharge of...any substance into the waters of this Commonwealth, which causes or contributes to pollution...or creates a danger of such pollution is hereby declared not to be a reasonable or natural use of such waters, to be against public policy and to be a public nuisance" and "shall be abatable in the manner provided by law or equity for the abatement of public nuisances." Minnesota's provision is given additional detail in state regulations, making its applicability to nonpoint discharges explicit: "No sewage, industrial waste or other wastes shall be discharged from either point or nonpoint sources into any waters of the state so as to cause any nuisance conditions, such as the presence of significant amounts of floating solids, scum...excessive suspended solids, material discoloration...undesirable slimes or fungus growths, aquatic habitat degradation, excessive growth of aquatic plants, or other harmful effects."

Some laws more directly reflect the historic petty criminal nature of water pollution as a nuisance. In California state statutes "Every person who...dumps or causes to be dumped, any waste matter into any bay, lagoon, channel, river, creek, slough, canal, lake, or reservoir, or other stream or body of water, or upon a bank, beach, or shore within 150 feet of the high water mark of any stream or body of water, is guilty of a misdemeanor" and imposes a fine of $100-1000. A few states have even older provisions, like Kentucky, which makes it a violation for any person to place or cause to be placed "in any stream, dam, pool or pond" any substance that renders the water "unfit for use or produces a stench," punishable by fine of not less than $10 nor more than $100 and/or imprisonment for 30 days to 6 months. Ohio law states "No person shall...corrupt or render unwholesome or impure, a watercourse, stream, or water." This is a misdemeanor punishable by up to 60 days and/or $500.

General nuisance law is typified by Minnesota "Anything which is injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance." Some states have made the connection to public health abatement explicit. For example, Kansas's Secretary of Health and Environment and county boards of health can examine all "nuisances, sources of filth and causes of sickness"..."When such source is found to exist on any private property or upon any watercourse in the state" they have the power to order the owner to remove the nuisance within 24 hours.

ENFORCEMENT AND SANCTIONS
Most general discharge prohibitions under state water pollution control laws are enforceable by administrative orders, civil injunctions and civil penalties in the $10,000 to $25,000 range, criminal sanctions and other sanctions.

What are the costs to the courses in violation? More than the abatement cost or a fine is the bad reputation of the club in the community.

Just last year I was told an exclusive private club opened in on the east coast, all was going as planned except the maintenance facility was not yet complete. A worker at the course rinsed off the sprayer on a flat piece of ground near a running creek. Just a portion of the chemical made its way into the water causing a fish kill. The neighbors and adjoining landowners reported the fish kill the authorities. The superintendent was replaced immediately. The course is now required to test all water bodies on the course each month and report to the state fish and wildlife authorities at a cost of $4,000.00 per year. The club must also remediate all of the soil at the washing site, the total cost for the one-time washing of a chemical sprayer near a running creek, $400,000.00.

THE BOTTOM LINE ON WASH PADS
It’s just a matter of time before legislation is specifically enacted to regulate wash water from golf course equipment. As it stands now, April, 2011 most golf courses should have some type of permit from local or state authorities to release trace quantities of pesticides if you do not have a water recycling system. Contact your insurance company, the club’s attorney and your local or state authority on your need for a National Pollutant Discharge Elimination System (“NPDES”) permit.

As you now know the Clean Water Act is just the tip of the iceberg, Rep. James Oberstar, Democrat, Minnesota, sponsored a bill that this spring made it through the house (H.R. 1262) to augment the CWA with an additional $1.3 billion in funds for additions and enforcements. I am sure by the time the bill makes it through the senate it will include other amendments to beef up protection for the waters of the country as well as other “enhancements”.

Build a wash pad, drain to a holding tank or recycling equipment, or get a NPDES permit for discharge into local sanitary sewer. Do not let the wash water drain into a stream, pond, storm sewer, or any body of water! If possible drain equipment wash water to an area that has no chance to flow into a body of water, over an area of vegetation is best. When cleaning spray tanks and equipment clean all related parts in an out of the way turf area on property. The left over spray is legally considered pesticide waste. Waste is what is left over from the intended propose of the original spray mix. The ideal is to recycle all wash and rinsate if possible and I believe it’s just a matter of time before state or federal regulations mandate all golf courses to capture all water use to clean equipment. When capturing wash water it can be diluted to use as make-up water for subsequent spray mixes. Of course don’t empty unused spray formulations anywhere unless diluted and broadcast sprayed in an out of the way turf area.

Old fashion leach pits and septic-type water treatments may yield sufficient results. Capturing and reusing wash water seems to be the best alternative to an expensive recycling system. Compressed air clipping removal is also an alternative way to keeping equipment clean. Dry clippings can often be composted and used on property as beneficial mulch.

On new installations or renovations to a wash pad it is advisable to install test wells to sample water if your Turf Care Center is in a low water table area. The testing will provide baseline statistics and should be proof of your proper care of chemical pesticides. Soil samples can also be sent to labs to discover just what chemical pesticides are in the soil.

If a Bureaucrat wants to make a name for themselves or make your life difficult I believe they have all of the means as explained above. The media loves sensational topics and negligent polluters are great copy. Be proactive and seek out what your local or state government wants your golf course to do pertaining to compliance issues. Be proactive not reactive!

As we begin to wind down final months of 2009 golf season, your club should be well on its way with its business plan and comprehensive budget for 2010. Yet, many clubs forestall this process until the 11th hour thinking something will be discovered in the last quarter that will be ground shattering and life changing. The excuses are endless and far easier than the task of formulating an excellent business and financial plan. These are some of the reasons procrastinating department heads and mangers have used:

• We can’t start a new budget when we don’t have final numbers for 2009.
• We haven’t decided what we are going to do with our operation in the off season.
• We’re too busy.

• We don’t know what the cost of good will be in this crazy economy.

• We’re scared of what it might look like.

• We’ve tried that before and it did not help us.

• It takes too much time and we don’t ever use it for anything.

• Budgeting doesn’t require reinventing the wheel.

• Our financial plan is adequate based on past history.

By beginning the planning and budgeting process early management can head-off pitfalls!

The reality is that many golf clubs either don’t have the skills, commitment, discipline, or desire to put together a well planned budget. Planning and budgeting is work! Hard work! But like any other hard work well done, it provides benefits.

A forward thinking approach with a financial plan in place for the entire year and variances that are updated on a monthly basis with forecast and focus on creating the future is a paradigm that any successful business utilizes. Yet, I find that in most cases golf clubs do little more than take a perfunctory look at the numbers from the prior year and usually add a factor to account for price increases, several increases in wages and call the plan good.

I have seen amazing transformations in the actions Clubs take when the financial realities of their business are made known to them in black and white terms with a well thought out, financial plan and a goal orientated budget projection. I have implemented budgeting where it previously was not properly utilized and immediately new plans were developed for better expense controls and member satisfaction. Important priorities where addressed instead of just “Shoot from the Hip” afterthoughts. Directing focus towards creating the future through a thorough, well crafted business plan and budget is what separates great clubs from average clubs.

You need to set goals and standards for your Club.

But putting together a business plan and comprehensive budget is more than just crunching numbers on a calculator all day. There is a lot groundwork that must be completed in order to get the proper foundation to a new financial plan. A solid financial plan is the final results of a thorough Business Planning process which includes:

1. SFSWOT Analysis

This is an analysis of each Club department’s and the Club’s overall:

• Successes

• Failures

• Strengths

• Weaknesses

• Threats

• Opportunities

It provides a critical self assessment of your Club and provides a great foundation for goal setting for both qualitative and quantitative improvements in the upcoming year.

2. Competitive Analysis

Who is your competition? What resources does your completion exploit that you don’t? What is your clubs unique advantage?

3. Standards of Service and Maintenance

What should be the standard at your Club; is it white table cloth dining or casual fare in a relaxed atmosphere? Are the greens mowed by six men by hand daily or triplexes just ahead of the first group? These standards will all have impacts on the business plan and formulation of the budget.

3. Membership Planning

What are your Club trends for both membership enrollment and attrition? What real growth do you want to plan for in 2010? What has been the trend with downgrades and upgrades? What are you doing with Initiation Fees? Do you have enough financing in place? How will you handle members wanting to resign?

4. Pricing Plan

What dues price increase will you take this year and when? Will guest fees increase? How will we retain our members with increased pricing? How will you price your golf cart and guest fees? Remember, golf course maintenance isn’t a revenue department but knowing the big picture gives knowledge to the superintendent and makes him/her one of your business partners. With the exception of a very few elite private Clubs, cost does matter.

5. Payroll Planning

What payroll increases are you authorizing for the Club’s employees in 2010? Are the wage increases performance based or just “no thought” across the board raises? Is it smart to give increases in pay during this recession? Do you have incentive based compensation plans in place or do you just pay for showing up regardless of the performance?

6. Expense Planning

What expense increases are you anticipating? Have you reviewed each department on a line item basis to determine if the expenses may have significant fluctuations either up or down? Items that can change significantly include general liability insurance, property taxes, utilities, fertilizer, chemicals, and fuel. Have you reviewed these thoroughly to ensure you have an accurate view of the expense side of the financial plan?

7. Marketing Plan

Do have a written quarterly game plan for driving the revenue sources that are important to your Club? Are specific timelines and people assigned to carry out the plans? Did you make sure you budgeted the needed dollars for marketing to ensure you will be able to achieve the results you need?

8. Retention Planning

Do you have a comprehensive calendar of events that appeal to all segments of your membership to keep them using the Club and providing needed revenues. Is your calendar planned ahead at least 3 months at all times? Or are you trying to come up with things at the last minute because the newsletter copy is due?

9. Qualitative Improvement Planning

Do you have a written quarterly plan in every department for qualitative improvement? Specifically, are you challenging all of your golf club departments to implement 2 or 3 initiatives that create a better member experience, provide for improved employee efficiency, introduce a new product or service, or produce a better financial result?

10. Capital Planning

Do you have a written capital replacement plan in place for 2010? Replacing depreciated assets on an annual basis is a major component of a successful business. Do you have the necessary cash to replace what is needed in 2010? Are you going to lease or finance needed equipment? Have you made sure you have done the analysis? Is your plan at least looking ahead 5 years?

The conclusion is this:If you don’t know where you’re going, you might wind up someplace else. - Yogi Berra